United States: 2018 Brings New Changes To Various Business Immigration Programs

Last Updated: January 29 2018
Article by Kevin J. Fitzgerald and Punam Singh Rogers

Since taking office, President Donald Trump has issued a series of immigration-related executive orders and proclamations that have become the general framework for the future management of U.S. immigration policy and programs. In response to the President Trump's directives, Department of Homeland Security ("DHS") has begun to make significant changes to existing immigration programs. Here is an overview of the business immigration landscape as we enter 2018. However, please note, given the fluid dynamics of immigration policy, all or some of this may be subject to change.


Brief History: The H-1B visa program allows U.S. companies to temporarily employ foreign workers in professional occupations typically requiring a minimum of bachelor's degree or higher or its equivalent. Congress has a mandated cap of 65,000 H-1B visas (commonly known as the "regular cap") and an additional 20,000 H-1B visas for beneficiaries who have earned a U.S. master's degree or higher (commonly known as the "advanced degree cap"). U.S. Citizenship and Immigration Service ("USCIS") begins accepting H-1B petitions that are subject to the annual cap six months in advance of the government's upcoming fiscal year (October 1). For nearly a decade, USCIS has received more H-1B petitions than it can accept for processing. Therefore, USCIS conducts a computer generated random selection process (the "H-1B Lottery") to notify employers which of their petitions has been accepted for processing.

2018 Changes: DHS has stated that it plans to revise the lottery process for the upcoming fiscal year. However, given the recent government shutdown and negotiations on other immigration programs, it appears that any changes may not be implemented in time for this year's filing deadline of April 1. Nevertheless, the proposal under consideration is a pre-registration system for cap-subject H-1B visa applicants. DHS appears to be looking to revive a 2011 proposal where employers would submit certain specified information about desired H-1B beneficiaries to USCIS through an online registration system. USCIS would then run the lottery against those submissions and, if that registration is selected in the lottery, only then would the complete H-1B petition be submitted to USCIS for processing.

The agency indicated it may also modify the selection process, currently completed through a random electronic lottery, so that H-1Bs would be awarded to the "most-skilled or highest-paid petition beneficiaries," as was contemplated in President Trump's "Buy American Hire American" executive order in April 2017. To date, there are very few details available about how the new selection process will work and what criteria will be used to evaluate the H-1B petition during the pre-registration process.

In the last six months, USCIS has already started to implement informal changes to the H-1B program to toughen up its review of H-1B petitions. As a result, USCIS has doubled the amount of Request for Evidence notices that it has issued in H-1B cases, and the denial rate has also increased by the same measure. The Requests for Evidence and denials issued by USCIS seem to focus on challenging (1) whether a position truly requires a bachelor's degree in a specific and related field; (2) whether a position receiving a Level 1 wage under the Department of Labor's prevailing wage guidance truly qualifies as a "specialty occupation;" and (3) whether the position was sufficiently "entry level" to justify the use of a Level 1 prevailing wage. USCIS has also announced that it is changing its longstanding policy of giving deference to a previously approved H-1B petition – indicating that USCIS may be intending to apply its new tougher H-1B standards to extension petitions as well.

In addition, DHS plans to propose a rule to revise the definition of "specialty occupation" for H-1B eligibility to "increase the focus on truly obtaining the best and brightest." It appears that such a new rule would also revise the definition of "employment" and the "employer-employee relationship," and add a new requirement designed to ensure that employers pay appropriate wages to H-1B workers. The target effective date of this change is October 2018. There is currently very little detail about such changes, so it is unclear whether these proposals may be lawful without an act of Congress.

The series of new proposed rules will likely focus on restricting H-1B workers, but it is unclear how much will require a legislative fix rather than just formal rule making or informal changes of practice. Even if some changes can come about through formal rule making, the prerequisite notice and comment rulemaking process often takes six months or longer, so it is not clear that the Administration will have time to make such substantial changes to the H-1B filing process before the FY2019 cap season begins on April 1, 2018. It is also unclear if adjudication of those petitions, that often can take months, will apply any new standards developed while the petitions are pending with USCIS. Employers should take care to set realistic expectations for business stakeholders regarding timelines and processing times, as well as the level of scrutiny each petition may undergo.


Brief History: The Obama-era International Entrepreneur Rule ("IE Rule"), which had been scheduled to go into effect on July 17, 2017, would allow qualifying foreign entrepreneurs to come to the U.S. to establish, oversee and grow their businesses. If an applicant met the established investment and business growth standards, the applicant could be granted advance parole to enter the U.S. and work authorization for up to a total of five years, as well as a potential path to permanent residence. However, six days before the IE Rule was set to take effect, the current Administration published its own rule delaying its implementation until March 14, 2018. In fact, the Administration indicated that it was likely going to rescind the IE Rule. National Venture Capital Association, Omni Labs, Peak Laboratories LLC and two foreign entrepreneurs from the UK who had launched LotusPlay filed a suit in federal court to enjoin the Administration's delay of the IE Rule on the grounds that the delay was implemented without giving the public the required notice and chance to comment. In December 2017, the U.S. District Court for the District of Columbia ruled that the Trump Administration had indeed implemented the delay without following the necessary Administrative Procedures Act (APA) and issued an order enjoining the Administration's delay and ordering the implementation of the IE Rule.

2018 Changes: After the District Court decision, DHS announced that it would be taking steps to implement the IE Rule to comply with the court order. However, the agency simultaneously announced that it is in the final stages of drafting a notice of proposed rulemaking to repeal the rule. Therefore, while the IE Rule is now technically in effect, employers and foreign investors are cautioned to continue to monitor both the agency's implementation of the rule and the regulatory process. The repeal of the IE Rule can take several months, so it is unclear if anyone will be granted this discretionary admission in the meantime and, if granted, what that could mean to their admission to the U.S. if the rule is eventually revoked.

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